Ask a Lawyer: Obtaining Compensation for Weak Government Supervision in California

Abuse and Neglect in California Nursing Homes: Compensating for Weak Government Supervision

by Jaime Levine, Elder Law Attorney

California has extensive regulation concerning the operation of skilled nursing facilities. The State has set out a Patient’s Bill of Rights, which is enumerated in the California Code of Regulations, Section 72527 of Title 22. The Bill provides numerous rights to protect the residents of skilled nursing facilities. Unfortunately, these rights are often purposely ignored in order to improve profitability of the skilled nursing facilities. Fines set forth for violations of the Patient’s Bill of Rights are often low and are sporadically enforced. As a result, nursing homes tend to ignore the regulations, accept the small fines as “a cost of doing business,” and continue to violate the law.

Inadequate staffing is one of the most persistent violations of residents’ rights. Under the California Health and Safety Code and the Welfare and Institutions Code, the minimum staff-to-patient ratio is 3.2 hours of care per resident per day. In order to keep down operational costs and increase profit margins, many skilled nursing facilities cut back on employees and intentionally fail to maintain the required ratio. As a result of less staff-to-patient care, patients are more likely to be subject to abuse and neglect, and to development bed-sores and infections. To combat the violations caused by under-staffing, California enacted Health and Safety Code section 1430(B). Under this section, a resident whose rights have been violated may recover $500.00 per violation. These damages are available in addition to recovery for medical bills, pain and suffering, and attorneys’ fees.

Elder Law & Advocacy has successfully argued that plaintiffs in such cases should be able to pursue statutory damages for every resident for every hour that staffing falls below the 3.2 number. Thus, a case that might not have normally attracted a plaintiff’s attorney based on available damages may become much more remunerative and interesting to the private bar.

In reaction to an increase in violations, and the general need to protect the residents of skilled nursing facilities, Elder Law & Advocacy has established the Nursing Home Rights Enforcement Project. The program has been successful in terms of making violations of regulations more expensive for nursing homes. Our in-house Nursing Home Rights Attorney, Mr. Andrew Thompson, conducts initial interviews with the victims and their families in order to analyze potential violations.

The Nursing Home Rights Enforcement Project has been effective in highlighting violations of law by nursing homes and is helping to make violations of nursing home law too expensive to be considered a cost of doing business. As the program grows and the model is adopted in other parts of California, we look forward to continuing to improve the level of compliance in the future.

It is tragic that certain corporate entities in the nursing home business place profitability ahead of the health and safety of their elderly and vulnerable residents. Given the ineffective regulatory and supervisory structure that has evolved in this state, being able to compensate with civil legal remedies is an imperative. Elder Law & Advocacy’s Nursing Home Rights Enforcement Project will continue to use those civil remedies to protect our too-often neglected elderly population.